This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. Results suggest that not only is much of the controversy surrounding behavioral genetics and crime unwarranted, the use of such evidence has been misunderstood.

Within the last four years, for example, behavioral genetics evidence has appeared to have been applied almost exclusively as mitigating evidence in death penalty cases and primarily in two ways to support claims of ineffective assistance of counsel for neglecting such evidence or to provide proof and diagnosis of a defendant’s mitigating condition. Strikingly, this study found no case during 2007-2011 in which behavioral genetics factors were introduced by the State, much less used as aggravating evidence or as indications that a defendant would be a future danger to others. These findings debunk arguments that such evidence will be legally detrimental to a defendant. Indeed, in most cases, the evidence is so tightly intertwined with other factors in a defendant’s life that the particular impact of behavioral genetics can be difficult to isolate. This study’s results suggest that, at the very least, behavioral genetics evidence has no decipherable impact on a defendant’s case or, at most, it becomes an effective tool along with a range of other kinds of variables in rendering a defendant ineligible for the death penalty. Courts appear willing to accept behavioral genetics evidence as part of a defendant’s mitigation story, even if genetics renders that story a more troubling one in terms of the defendant’s purported propensities. The last four years also showed a number of break-a-way trends from earlier years. For example, there were substantially more cases that incorporated behavioral genetics evidence of any kind. In addition, there was a clear increase in the number of cases in which defendants submitted proof of a genetic propensity for alcoholism and/or substance abuse.

Overall, this article’s research shows that courts accept behavioral genetics evidence in the majority of cases in which defense attorneys attempt to offer it. The coming years will reveal whether such trends will be affected by Cullen v. Pinholster, the Supreme Court’s recent decision restricting prisoners’ efforts to seek federal habeas relief under AEDPA. Regardless, behavioral genetics evidence seems, on the surface, to have reached a status commensurate with other kinds of evidence without the baggage of abuse with which it has typically been associated.

At Slate, Judge Richard Posner critiques the analysis used in the recently-decided juvenile justice case Miller v. Alabama. Here's how he makes a familiar point about the use of neuroscience in this line of cases: "The court has learned from brain science that teenagers are immature!"

In the last post of my series on mental illness and moral responsibility, I would like to ask a question about hypnosis. Given that hypnosis is used to model symptoms of psychiatric disorders (e.g. delusions), it would be interesting to know whether people under hypnosis are regarded as morally responsible for what they do.

To this purpose, I have interviewed Dr Rochelle Cox, Macquarie University Research Fellow, who has published widely on hypnosis.

Lisa: What do you use hypnosis for in your research?

Rochelle: I use hypnosis as a tool to model clinical conditions such as delusions. Delusions are pathological beliefs that are seen in a variety of neuropsychological and psychiatric conditions, such as dementia, stroke, and traumatic brain injury. Delusional patients can believe the most extraordinary, clearly false things. They may say, for instance: “My wife has been replaced by an impostor” or “When I look in the mirror I see a stranger”. The scientific study of delusions has proven challenging because delusions typically co-occur with other clinical symptoms. However, I have used hypnosis to model clinical delusions and “bring them into the lab”. Hypnotic models have been described as a way of creating “virtual patients” with temporary, reversible psychological disturbances. They allow us to manipulate important factors that are difficult, if not impossible, to manipulate in the real world. Hypnosis is particularly suited to modelling delusions because both delusions and hypnotic experiences are believed with conviction, maintained despite evidence to the contrary, and experienced as involuntary and as compellingly real.

Lisa: Do you think that highly hypnotisable subjects are responsible for what they say and do when they are hypnotised?

Rochelle: During hypnosis, high hypnotizable subjects are actively thinking about how they might experience the hypnotist’s suggestions but their responses to these suggestions often feel quite effortless. Disconnections of this type are hallmark features of hypnosis but they do not mean that hypnotised subjects are not responsible for their actions. Hypnosis itself doesn't make people more susceptible to doing things against their will or things that they morally object to.

Lisa: Can you give some examples?

Rochelle: A number of classic studies suggest that hypnotized subjects will do absolutely anything that is asked of them. In these experiments, highly hypnotizable subjects have stolen exams, sold heroin, and thrown acid in someone’s face at the request of the hypnotist. However, in all of these cases, subjects knew that they were participating in an experiment. This strongly implies that they will be protected from any negative consequences arising from their hypnotic behavior. It is worth remembering that subjects who are not hypnotised have also performed morally dubious actions in experiments such as in Milgram’s classic obedience study. Here, subjects continued to administer electric shocks to people well past the point of danger, despite their victims crying out in pain, all at the request of the experimenter. In a sense, all laboratory studies lack ecological validity because in the real world there is no safeguard that comes with being an experimental subject. Ethically, we could probably never construct an adequate test of the coercive power of hypnosis!

Lisa: In fiction, we are familiar with cases of people who are led to commit crimes (e.g. rob banks) by an objectionable and devious use of hypnosis. Is this realistic in your opinion? Can people's actions be "controlled" at a distance with hypnosis?

Rochelle: This is indeed purely fiction! There was a case in Denmark where a hypnotized person robbed a number of banks and ended up committing murder. At the trial, the defendant claimed to have been a victim of hypnotic coercion. However, this was rejected by the court and both the defendant and the hypnotist were convicted. Laurence and Perry have argued that it is the close interpersonal relationship between the hypnotist and subject that drives this behavior, rather than anything about hypnosis itself.

This exchange with Rochelle clarified things a lot for me, and I hope it was interesting for you too! If you are fascinated (as I am) by the research programme in which Rochelle is involved - modelling delusions with hypnosis - have a closer look at her work.

Okay, this is it for this month. My thanks to Adam for inviting me to guest blog here, and to all of you for reading my posts.

As we saw in the last post, by constructing self-narratives, agents can not only make sense of their previous behaviour but also exercise control over their future behaviour. Their sense of self guides the formation of beliefs, plans, decisions, and so on. Failures of rationality and self-knowledge do not necessarily compromise the capacity to construct self-narratives, and thus the capacity for self-governance may be preserved. What is likely to happen, though, is that people with delusions are not very successful at governing themselves, where success is cashed out in terms of psychological well-being.

Think about it in these terms. What makes you a good ruler? Your knowledge of what your people want and need, and your capacity to take into account this information when making important decisions. When we think about self-ruling, then success seems to be hostage to self-knowledge and rationality. You need to know what you want and need (self-knowledge), what will make you happy, and you need the capacity to make decisions that take into account such information (rationality). Failures of self-knowledge and of rationality may interfere with the exercise of the capacity for self-governance.

When your story largely corresponds to reality and is coherent, psychological well-being is expected to ensue (see Wilson’s Strangers to Ourselves). When your story is coherent but inaccurate, as when delusions are woven in the self-narrative, this might also result in well-being, but only temporarily, until the pressure of fitting the story with reality becomes too much to bear - this is especially true of far-fetched delusions which are integrated in the story at the cost of creating an increasingly wide gap between story and reality. When your story is incoherent and partly inaccurate, because there is a delusion that is not completely woven in the self-narrative and conflicts with other things you believe, correspondence can be restored. You need to cross out a bit of the story (the delusional bit) and rewrite it. Cognitive behavioural therapy alongside appropriate medication can serve this purpose.

So, the presence of delusions does not necessarily signal a lack of capacity for autonomy as self-governance, but is a reason for alarm since delusions often interfere with the successful exercise of self-governance. What are the implications for policy? It would be a mistake to assume that people have lost their capacity for self-governance just because they report delusional beliefs. Failures of rationality and self-knowledge do not necessarily compromise the capacity to shape one’s own future. But such failures make it likely that decisions about one’s own future are based on unreliable information - about oneself and about the surrounding social and physical environment. That is why it would also be a mistake to assume that people with delusions can govern themselves successfully. Depending on the nature of their delusions, and on the extent to which their attitudes depart from rationality, people with delusions can make decisions that may not lead to the satisfaction of their own preferences and interests. As a result, such decisions may not be conducive to promoting their own well-being. Major departures from other people’s shared experiences cause a breakdown of communication, possibly leading to social withdrawal and isolation, and conflicting beliefs about oneself can create fragmented narratives that cannot direct future action in a consistent and meaningful way.

Notice that, here again, there’s continuity between delusional and irrational but non-pathological beliefs. The considerations above apply to many false beliefs, even when there is no identified psychiatric disorder. Non-clinical failures of rationality and self-knowledge are bad news for successful self-governance, for all of us. Minor inaccuracies in self-narratives can be beneficial, e.g. when an overly optimistic reconstruction of one’s own past performance contributes to one’s self-esteem in everyday situations. However, when inaccuracies are more widespread, then the capacity to shape one’s own life in a way that will yield well-being is compromised.

NITA A. FARAHANY, Vanderbilt Law SchoolA Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself. This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information — and not just how or where it was stored — informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.

BETSY GREY, Arizona State University (ASU) - Sandra Day O'Connor College of LawLike other mental disorders, PTSD has been advanced in criminal law to support sentencing mitigation. Unlike other disorders, however, PTSD traces back to an event that is considered the cause of the disorder, known as the stressor. Stressors can range from car accidents to gang violence to the commission of a crime. This article examines whether lawmakers should consider the nature of the stressor when deciding whether to use PTSD as a mitigating factor in sentencing.

Courts and legislatures generally have not embraced use of PTSD in sentencing mitigation except in cases where it resulted from combat duty or domestic violence. This article questions that exceptionalism. In particular, limiting PTSD consideration to these contexts can no longer be justified by concerns that a defendant is faking the syndrome. Advances in neuroscience increasingly make it possible to measure the physiological changes that occur in a person’s brain after experiencing a trauma, raising the prospect of establishing the validity of a wider range of PTSD claims. In that event, the distinction between the combat and domestic violence stressors, as opposed to other causes of PTSD, is unwarranted in terms of the prevailing justifications for punishment. The issue, then, is whether other rationales can justify limiting PTSD consideration to certain stressors. Accordingly, lawmakers should acknowledge that other normative concerns may influence our treatment of PTSD in sentencing and develop more neutral limiting principles to determine when PTSD can mitigate a criminal sentence.

In my latest posts, I have started to sketch a view about the relationship between autonomy and mental illness. First, I anticipated my thesis, that the capacity for self-governance is not compromised in people with delusions but that success in governing oneself may be difficult to achieve due to failures in rationality and self-knowledge. Second, I have invited you to consider a link between developing self-narratives and exercising autonomy. What happens when self-narratives are inaccurate or incoherent?

In a paper published in 2009, "Mad scientists or unreliable autobiographers? Dopamine Dysregulation and Delusion", Phil Gerrans proposes that people with delusions attribute excessive significance to some of their experiences. When experiences are accompanied by hypersalience, they become integrated in a personal narrative that guides deliberation. If abnormal experiences are attributed excessive significance and weaved into the story as dominant events (as in delusions), thoughts and behaviours acquire pathological characteristics. This approach vindicates the apparent success of some form of medication and of cognitive behavioural therapy. Dopamine antagonists can stop the generation of inappropriate salience and hence the emotional valence of relevant experiences is lessened (see Shitij Kapur's 2003 paper for more details). In cognitive behavioural therapy people with delusions are encouraged to refocus attention on a different set of experiences from the ones that contribute to the delusional narrative, or to stop weaving the delusional experiences in their autobiographies by constructing scenarios in which such experiences would make sense even if the delusional belief were false.

In disorders where memory is seriously impaired (as in dementia, amnesia or dissociative identity disorder), a person can find herself thinking or doing things without being able to provide reasons for them because she has no access to relevant biographical data. The capacity to develop a self-narrative and the capacity to assume moral responsibility for actions seem to be compromised. The case of people with delusions is not typically a case in which self-narratives cannot be constructed at all, but in which they are constructed unreliably, as Gerrans observed. When delusions are integrated in a person’s narrative, they may be paid excessive attention, rationalised and protected from the pressure of external challenges. As a result, the constructed narrative is coherent but largely inaccurate. When delusions are not well-integrated in the narrative, they may be compartmentalised with respect to other relevant experiences and beliefs, leading to the construction of a largely accurate but incoherent narrative or of multiple conflicting narratives. When coherence trumps correspondence, people with delusions may lose touch with reality and with those around them. When correspondence trumps coherence, internal conflicts may undermine intelligibility and agency.

When a delusion becomes integrated in a personal narrative, giving up the delusion can generate lack of self-esteem and confusion about one’s identity. Suppose Jimmy has mistakenly believed for some time that he is an Oscar-winning actor. As a consequence of this delusion, he tells people in the pub about his life in the spotlight, his friends in Hollywood, his excellent salary and his exotic holidays. But in real life Jimmy lives on benefits and has no close friends. What will happen if he is ‘cured of’ his delusion? He will realise that he is not a famous actor, and he will also appreciate that many of the things he believed to be true about himself are in fact false. Jimmy will start seeing his life as unsuccessful and empty. The effects of making one’s self-narrative correspond to reality can be devastating, and many people experience depression when they acquire insight into their delusions.

What's the verdict on self-governance in people with delusions? As I anticipated, I think the capacity for self-governance is preserved, but success in self-governance may be difficult to achieve. But what does it take to be successful at governing oneself? Some suggestions in the next post!

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

Franklin Zimring writes here about the drop in crime rates in New York City. Apparently, the piece originally appeared in Scientific American about a year ago. Though the piece is inconclusive about the causes of the drop, I thought this paragraph might be particularly interesting to readers of the Neuroethics & Law Blog (though I suppose its scope may extend beyond available evidence):

Perhaps the most optimistic lesson to take from New York’s experience is that high rates of homicides and muggings are not hardwired into a city’s populations, cultures and institutions. The steady, significant and cumulatively overwhelming crime decline in New York is proof that cities as we know them need not be incubators of robbery, rape and mayhem. Moreover, it demonstrates that the environment in which people are raised does not doom them to a lifetime outside the law—and that neither do their genes. That result is a fundamental surprise to many students of the American city and is the most hopeful insight of criminological science in a century.

The development of self-narratives has been linked to the exercise of autonomy in the philosophical and psychological literature. People tell stories about themselves which help them recollect memories about past experiences, identify certain patterns and a sense of direction in their life events, and have some concept of what kind of persons they are, what they have achieved or failed to achieve, and what their future objectives are.

Contemporary philosophers have drawn attention to self-narratives in describing the nature of the self and the mechanisms underlying autonomous thought and action. For instance, Daniel Dennett argues that the self is a centre of narrative gravity: it is the fictional character the self-narrative talks about, a fiction by means of which we can impose some order on complicated autobiographical events. He argues that the narrative in which the self is the leading character is produced by the brain. This builds upon Michael Gazzaniga’s work where he describes what he calls an ‘interpreter module’ which provides a running commentary and forms hypotheses to explain the agent’s actions. In the narrative, there is one single entity to which attitudes and actions are ascribed, a unified self, a locus of agency. But, according to Dennett, this is not necessarily how things are outside the fiction, where there is no self over and beyond the ‘I’ in the running commentary.

David Velleman partially agrees with Dennett that the self is the character of a narrative, but argues that the narrative is not necessarily false, and thus the self may actually exist. The narrative can ‘make itself true’, because it can produce changes in behaviour. We tell a story in order to interpret the events in our lives, but then we also behave in such a way as to be faithful to the story we have been telling. This is the phenomenon of self-constitution, creating the self by making commitments about the future. According to Velleman, an autonomous agent is precisely an individual with the power of self-constitution. Motivated reconstruction and interpretation shape memories and contribute to the creation of the self as a narrative character, but this character exists outside the fiction, it is (to an extent at least) created by the narrative. This does not mean though that the narrative is always true and accurate. The narrative strives for coherence, and because of the very many factors that affect a person’s behaviour, coherence can sometimes be achieved only at the cost of distorting the facts. This does not necessarily lead to pathological confabulation or delusional memories, but is a feature of normal cognition.

There are everyday examples of unreliable self-narratives that are not pathological: in general, people go a long way to preserve a positive conception of their selves and their perception of their own successes and failures (e.g., self-serving biases) is often different from a third-person’s perception. However, when distortions are more severe, not even perceptual information or general principles of plausibility may serve as constraints on the narrative. For instance, patients with anosognosia (denial of illness) for arm paralysis may claim that their arm can and does move, even if they have no perceptual deficits and should be perfectly able to see that their arm lies motionless at their side. Such patients have not updated their narratives to include the presence of a serious impairment such as paralysis of their limbs, among their significant life events. In other pathological cases, for instance conditions involving memory impairment, motivational factors and limited access to personal information prevent the narrative from updating, and the narration becomes so insulated from the reality checks available to the narrator that it appears to others as blatantly false.

Next time we’ll see that delusions in general can also be characterised as unreliable self-narratives.

Direct brain intervention based mental capacity restoration techniques - for instance, psycho-active drugs - are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal contexts - i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has - in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership - and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities.